Citation Nr: 1140814
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 08-02 779 ) DATE
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Received from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for a right wrist disability.
2. Entitlement to service connection for an acquired psychiatric disorder manifested by anxiety or nervousness.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Kessel, Counsel
INTRODUCTION
The Veteran has served in the Alabama Army National Guard since August 1985, including on active duty for training (ACDUTRA) from September 1985 to February 1986 and on active duty (AD) performed under Title 10 orders from March 2003 to May 2004.
This appeal to the Board of Veterans' Appeals (Board) is from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
When the Veteran filed an application for benefits in August 2006, it included a claim of service connection for "anxiety/nerves." The United States Court of Appeals for Veterans Claims (Court/CAVC) has addressed the scope of filed claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability reasonably may be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. Id., at 5. Given the current lack of a specific diagnosis or even any medical evidence pertaining to this claim, the Board has characterized this claim more broadly as for service connection for an acquired psychiatric disorder manifested by anxiety or nervousness.
Since, however, this claim and the other claim for a right wrist disability require further development before being decided, the Board is remanding these claims to the RO via the Appeals Management Center (AMC).
REMAND
In September 2006, some of the Veteran's service personnel records were obtained. These records contain information regarding his service through August 2004. However, service treatment records (STRs) that were obtained contain medical evidence from as recently as August 2006. Moreover, in a February 2009 statement, the Veteran indicated that he had a deployment pending for May 2009. Given that there may be more recent personnel records in existence that document the dates of his service in the Alabama Army National Guard, the Board finds that the claims should be remanded to have the AMC attempt to obtain this potentially relevant information.
There also remains the possibility that there are additional STRs or other medical records that need to be obtained. In an October 2011 brief, the Veteran's representative indicated there may be medical records that have not been obtained and put in the claims file for consideration. Notably, on multiple occasions the Veteran referenced medical records that he had submitted with his application for benefits in August 2006. The only medical records currently in the file, however, are the STRs that were obtained from his National Guard unit. Therefore, on remand, he should be sent a letter asking that he identify the medical records in question and submit any relevant evidence that he may have in his personal possession.
When he is contacted, the Veteran also should be asked to provide more information concerning the circumstances of his claimed right wrist disability and acquired psychiatric disorder. He has generally contended that these two disabilities are related to his military service, but he has not detailed when any injury, disease, or event occurred during his service as to have resulted in these disabilities. Two annual medical certificates, dated in January 2005 and August 2006, reference right wrist pain, but little information is provided. Additionally, a reference to anxiety or nerves is not found in the service records that are currently on file.
A VA compensation examination and medical nexus opinion also may be needed in the event additional records or other evidence is obtained, if after considering this evidence there is the required suggestion of these claimed disabilities' existence and their potential relationship to or with the Veteran's military service. According to the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).
When determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).
So whether an examination and opinion ultimately are needed to decide these claims should be based on these requirements and parameters.
Accordingly, these claims are REMANDED for the following additional development and consideration:
1. Send the Veteran a letter asking that he provide more specific information concerning the source and circumstances of his claimed right wrist disability and acquired psychiatric disorder. Additionally, ask that he identify the medical records referenced in his August 2006 application for benefits and submit any relevant evidence in his personal possession.
2. Contact the appropriate government records custodian, such as the National Personnel Records Center (NPRC) or the Veteran's Army National Guard unit, and request his service personnel records that have not yet been obtained - including especially those concerning his more recent service.
3. Also have the appropriate government records custodian, such as the NPRC or the Veteran's Army National Guard unit, provide any additional STRs.
4. Thereafter, undertake any additional development deemed necessary in connection with these claims, including, if warranted, having the Veteran undergo a VA compensation examination for medical nexus opinions concerning the etiology of his claimed right wrist disability and psychiatric disorder, but especially in terms of whether they are related to his military service or date back to his service.
5. Then readjudicate these claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.
By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).